The public know one thing about the British constitution, and it isn't true. The criminal lawyer is always asked how she can bear to represent a defendant who she suspects to be guilty of some ghastly offence. The constitutional lawyer is always ribbed because he doesn't really study anything at all.
I've lost count of the number of times a twinkly pub bore has advised me that "there's no such thing as a UK constitution". As my undergraduate students will tell you, perhaps to their regret, for all of the confident simplicity of the over-refreshed citizen's legal analysis, this isn't really the case. We may have no single foundational document headed "we the people" which you can point to as the wellspring of constitutional ideas in Britain, but we are not without fundamental principles and concepts around which our law and politics are organised.
The sovereignty of parliament is one of those fundamental principles. In its most basic formulation, it means that parliament can make or unmake any law it pleases. Under a codified constitution, legislative power is characteristically established subject to limitations. If an Act violates constitutional rights, for example, courts may step in and declare the legislation invalid, unconstitutional. In the UK, by contrast, parliament is sovereign today, sovereign twenty years ago, and sovereign tomorrow. The representatives forming it may age, may resign, may die, but election to election, decade to decade, the parliament remains possessed of its unalienable sovereignty. In practice, this means that no parliament can bind its successors, and every piece of legislation is vulnerable to repeal if a majority in the Lords and Commons can be mustered for it.
This orthodox account has been considerably shaken by the implications of Britain's membership of the European Union and the supremacy of European law. The law on the books diverges significantly from political practice. There is also a long-standing dispute about the extent to which Westminster is empowered to disapply fundamental provisions of the Act of Union.
But in general terms, most if not all constitutional lawyers in the UK recognise that without jettisoning the idea of parliamentary sovereignty and establishing a new and more limited legislature under a written constitution, entrenching Bills of Rights or statutes is a non-starter. The Blair government recognised as much when it introduced the Human Rights Act 1998. Elements of the Conservative Party are keen to exercise this authority to "Axe the Act" after the next general election. The same legal vulnerability extends to the devolution settlement.
That context in mind, I read Scottish Labour's wheeze to "entrench" devolution with interest. Yesterday's devolution commission report reads, in part:
"The Scottish Parliament is a permanent feature of the UK constitution and that legal provision should be made to reflect the political reality that the Scottish Parliament is indissoluble and permanently entrenched in the UK constitution. We also recommend that the “Sewel convention” should be given a statutory basis. This should be enshrined in law to give effect to the convention that the UK Parliament regards the right of the Scottish Parliament to legislate for the matters it properly controls, and that its powers cannot be changed without its consent."
But can it be done? In a limited sense, perhaps. Westminster may be able to immunise the Scotland Act against implied repeal. But express repeal? Without a revolution in British constitutional law, that's a non-starter.
Consider this scenario, which might as well be a problem in an undergraduate tutorial. Having defeating the perfidious Scottish Nationalist forces in the September referendum, in early 2015, Westminster amends the Scotland Act to fulfil Labour's ambition to "permanently entrench" devolution. Section 1(1) of the Act provides that "there shall be a Scottish Parliament". After this provision, MPs sneak in the amendment that "Section 1(1) of this Act shall not be susceptible to repeal or amendment by any other enactment or subordinate legislation in all time coming."
Whizz forward a month or two, and MPs find themselves once again embroiled in a corrosive expenses scandal, accompanied by a fresh financial crisis. Capitalising on the public disquiet, a buoyant Nigel Farage leads UKIP into an unexpected triumph in the general election poll, forming a minority government in the Commons. Supported by disparate and disgruntled elements of the Labour and Conservative MPs, Farage introduces a Bill to repeal the Scotland Act and abolish the Scottish Parliament tout suite.
Passing the Lords and Commons by the slimmest of margins, the monarch follows convention, giving royal assent to the legislation. Outraged, MSPs mount a legal challenge, arguing that the 2015 amendment prohibits Farage's parliamentary majority from taking the step, and the purported abolition of Holyrood was ineffective. Imagine you are one of the justices sitting in the UK Supreme Court hearing the case. What do you do?
The orthodox answer is that parliament cannot bind its successors, and the later, explicit enactment prevails over the earlier prohibition on MPs meddling with Holyrood. Despite its stern language, interpreted in the light of basic constitutional principles, the amendment was legally ineffective fluff; the Scottish version of section 18 of the European Union Act of 2011. Politically significant, perhaps - a declaration of intent on the part of legislators - but no legal let or hindrance on parliament obliterating Holyrood if it acquired the inclination so to do.
Nothing in the Labour document shows an awareness of any of this. It is difficult to disagree with Ian Smart's assessment, in a trenchant critique of the Labour report last night:
"And as for the idea that the Scottish Parliament could not be abolished without its consent? Where to start. Certainly, even now, that would be politically unthinkable, but for that to be "outlawed" wouldn't be possible without ripping up the UK's unwritten constitution and starting again with a properly written one. For what it's worth, once again, I am personally for that but that constitution can't be written unilaterally by less than ten percent of the UK's population, let alone by one political Party within it."